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PRODUCTIVE INDUSTRY 

DESERVES JUST COMPENSATION. 

APPEAL OF / 

WILLIAM WHEELER HUBBELL, 

FOR 

EQUITY ^ND JUSTICE, 

BY PAYMENT 

OFTHE ADJUDICATEDINDRBTEDNESS 

OF THE UNITED STATES, 

FOR THE USE OF 

HIS INVENTIONS AND PATENTS, 

FOR 

Several Million^ of Fuzes and Percussion Apparatus for the 
Explosive Shells used to suppress the Rebellion. 






WASHIKOTON : J 
Printed by Powell & Ginck, 
630, 632 F Street* 
1873. 



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FOUTY-SECOND CONGRESS, THIRD SESSIOK. 
Committee on Naval Affairs. 



Claim for Use of Several Million Hubbell's Patent Fuzes 
and Percussion Apparatus, and Patents therefor. 



CASE OF 
WILLIAM WHEELER HUBBELL, 

Of Philadelphia, Pa. 



1. Congress may, as it did in this case, treat a claim in 
which there is no time, nor meaDS in its committees, to 
obtain evidence and investigate, as though Congress were 
a high court of equity of the United States, by framing 
special issues or questions of fact, first as to originality, 
and second as to damages, similar to the practice of United 
States courts of equity in patent cases ; and, like a court 
of equity, send these issues to a court of law to determine 
the facts, as if a verdict on them wxre given by a jury. 
Upon the verdict the case comes back to the high court of 
equity for full execution. This is precisely the form of 
Hiibbell's case. This practice is similar to that often pur- 
sued between the equity side and the law side of the United 
States circuit courts in patent cases. The Court of Claims, 
to which the issues of fact were referred, has said substan- 
tially: We have been given no power by Congress to enter 
up a judgment of recovery on the Treasury for the full 
amount of Hubbell's reasonable actual loss and damage of 
$200,000. But we find that amount of his damage, and 
have power to enter up only for $66,666.66^, 



2 

It follows, in practice and justice, that Congress, the 
high court of reference, should enter judgment of settle- 
ment for the balance, $133,333,331 and interest, by an 
appropriation or act to pay it. 

2. These two issues of fact referred— one, as to origi- 
nality, and whether Hubbell is '' justly and equUably en- 
titled to compensation, and, second, what amount of com- 
pensation-fairly imply an agreement, or an obUgatmi 
assumed by Congress, to finally pay to Hubbell such com- 
pensation as he may prove to be, and the court shall find 
to be, just or reasoncdde for the percussion patent, and shell 
and fuze patents and Bomford contract, or either of them, 
according to the usual practice at common law, to deter- 
mine such a question ; this is the $200,000. 

And, further, it expresses an obligation on the part of 
Congress to pay $100,000 of this sum by authority of the 
proviso of the resolution at once on the decree, as a sub- 
stitute and in full of all claim whatever, for the contract 
price of one dollar a shell under the alleged Bomford con- 
tract; and of royalty proved and claimed of two dollars a 
shell under the two patents, one for the shell casting and 
one for the fuze, concerning which inventions the Bomford 
contract was made, as shown by the preamble of the reso- 
lution. But not on account of the percussion apparatus 
patent separately set out. 

Before the ascertainment of the amount of damage. 
Congress has seen fit to limit and restrict by the provtso 
of the resolution, the amount authorized to be paid there- 
under to $100,000, and alleges that Hubbell agrees to accept 
that sum " in full of all claims whatever by virtue of said 
patents and contract against the Government." One of 
these claims was for a royalty of two dollars per shell, by 
virtue of the patent, from its date, being an alternative 
claim if the contract failed. The other and primary claim 
was for the contract price of one dollar per shell, made 
before the issue of the patent, as a secret invention. The 



words " all claim whatever " covered both of these classes ; 
and the words of limitation immediately following, namely? 
'' by virtue of said patents and contract against the Gov- 
ernment," did not mean nor say by virtue of all of the 
aforesaid patents, and of said contract. It meant only 
what the committee originally, in 1862, framed these words 
to mean, namely, by virtue of said shell and fuze -patents, 
and contract of Bomford relating to these two same inven- 
tions. And not in any way including the percussion patent, 
afterwards and separately stated as a separate claim, and 
separate patent of different date and grant, in the preamble 
of the resolution of 1864, and not at all in that of 1862. 

In 1862 is the time the alleged agreement, or proposition 
it is rather, of Hubbell, to accept $100,000 for these two, 
the shell and fuze patents, and in substitution for the 
Bomford contract, was made, Congress by its committee 
accepted the sum of the proposal, modifying the conditions 
by a reference, as in equity, to try the title. It framed 
this resolution of 1862 to express its agreement, and the 
san£e preamble and the same proviso to have the same 
meaning or express the same agreement, were both con- 
tinued by tbe contracting parties, Congress or its committee, 
and Hubbell in the resolution of 1864. The addition of 
the percussion patent, afterwards as a separate claim in 
the preamble, brought it under the general reference of 
the first and second questions of fact, which were altered 
to admit of its separate consideration on the questions of 
originality, and of damages or compensation. And the 
originality and right to damage is separately answered by 
the court ; and the damages on both the faze patent and 
the percussion patent are collectively answered by the court 
at 1200,000. Congress having agreed to pay $100,000 for 
the one, if Hubbell sustained his title and claim on the 
shell and fuze, or either, to that amount, leaves, by simple 
arithmetic, as the deduced answer, the sum of |100,000 for 
the percussion patent. 



The proviso of the resolution of 1864, does mi say, which 
sum the claimant agrees to accept in full of all claims what- 
ever by virtue of all of the aforesaid patents, and also of 
said contract. It is simply a repetition of the same words 
"all claims whatever by virtue of said patents and con- 
tract, ' referring to the same recital in the preamble in 
1864, as originated and was meant or agreed upon in 186^? 
and the resolution of 1862 is positive evidence of that 
fact, and gave no power nor right to take Hubbell's valuable 
percussion patent in addition for nothing. He proving on 
the reference, it to be of particular value, and that he was 
the original inventor. 

The words -agrees" is sometimes used to mean only 
" proposes." An agreement to become a contract must be 
m writing, and possess both mutuality of consideration and 
fixed purpose, as to something to be done or not done. 
Here, if Hubbell agreed to receive $100,000 in full of all 
claims whatever by virtue of said shell and fuze patents 
then Congress must have agreed to pay it. Hubbell has 
established his right to |100,000 for one alone of these 
patents, the fuze patent of 1862, and has only been 4id 
$66,666,661, being $33,333,331 less than Congress a-reed 
to pay him for this patent. Hubbell also established his 
right to $100,000 for the percussion patent, and has not 
been paid one penny on account of it. Congress having 
framed and referred the issues to determine this, thereby 
impliedly agreed to pay it, and the Constitution in preserva- 
tion of Hubbell's rights as a citizen requires it to be paid. 
It is an ascertained debt of the United States, and Congress 
is required "to pay the debts of the United States," to see 
that private property is not taken for public use " without 
just compensation," and that the public debt is held " in- 
violate." The fact is. Congress cannot by the form of any 
reference or direction to a court, nor by impliedly or ex- 
pressly becoming a party to any obligation or agreement, 
seek to avoid the payment of a "just or reasonable com- 



pensation " to one of its citizens. This kind of oppression 
upon subjects, has been the basis for the overthrow of every 
monarchical government. It was, with unjust taxation, 
the basis of our revokition against Great Britain, and the 
citizens, of whom Hubbell, by his ancestors, were direct 
participants in such revolution and war, to establish this 
Government, have in both forms, the directory and pro- 
hibitory, put it beyond the power of Congress, to lawfully 
avoid the payment of a just ascertained debt, or to avoid 
giving a just compensation. And when the debt exists, 
either as damages in a tort, or on a contract a priori, a 
subsequent alleged agreement, made to avoid the just debt 
or just compensation, would be void, for want of constitu- 
tional consideration, that is, payment of a just compensa- 
tion is the only lawful discharge of the debt. 

To avoid this debt of $200,000, is to repudiate a judicially 
ascertained public debt of the United States, lay the founda- 
tion for a system of repudiation, notwithstanding the Con- 
stitution, and to set the duties as to paying debts expressed 
- therein, at naught and at defiance. 

Congress is not only a high court of equity to settle this 
debt, but it is a trustee of the people, to execute and be 
controlled by the provisions of the Constitution, and to 
avoid this debt, judicially found justly accrued to Hubbell 
as his loss and damage and gain to the United States, 
money of his therefore in the Treasury of the United States, 
being $200,000 upon proofs, in a fair trial and the princi- 
ples of the common law, would be the beginning of endless 
repudiation ; as any political party in power chose to exer- 
cise it, until the United States would have no credit and 
the people no faith. 

This being a debt of the war, stands on the same plat- 
form as the bonded public debt. A debt incurred by 
necessity, in the exercise of the right of self preservation 
in the Government. If one, this, can be escaped, through 
alleged agreements which never were made, except as to 



6 



the shell and fuze patents and the Bomford contract ; and 
which would be unconstitutional, as to an existing' debt 
owed at the time bj the United States, even if they were 
exacted of Hubbell, by duress of circumstances, and with- 
holding from him money, as damages, which belonged to 
him. If such a debt can be escaped, or repudiated, then 
the public debt of the United States can be thrown oft* 
without payment, through alleged agreements, or consid- 
erations, as to ditierences in value between greenbacks or 
legal tender notes and gold, at the time of the issue of the 
bonds, in precisely the same manner, and repudiation of 
the^ public debt become an established system, through 
judicial reference, and direction of Congress to the ref- 
erees, notwithstanding the Constitution. 

This principal or system of repudiation once attempted 
to be put in force on Hubbell, he will have a legal right, 
to turn from the decree and alleged agreement as stated' 
as m a case of legal fraud, and demand redress of Con- 
gress, in a right to a full reassessment of the damages by 
the Supreme Court of the United States upon the evidence 
m his tavor, which will, specifically stated, amount to at 
least SIX hundred thousand dollars from the dates of these 
patents, instead of only two hundred thousand. 

The letter of January 11, 1873, of the Hon. William 
Whiting, member elect to the next Congress, from Mas- 
sachusetts, and now filed, shows that at the time this reso- 
lution and agreement of 1862 was on the House calendar 
111 1863, Hubbell was negotiating or applying for a con- 
tract ot royalty with the War Department, on his percus- 
sion patent; not a part of such resolution; was referred 
to Congress. He petitioned in January, 1864, for its pur- 
chase, and in 1864 it was added to the old resolution, 
which was altered in the second issue, for it to be sepa- 
rately c.onsidcred, that it should be paid for of course, and 
'•^>^ ^''^-Inded in ihe old agreement, without any additional 
<'<'n,p(.nsa(i()n wluitever. Such would be -\nracy » as 



the court expresses it, by wholesale, and tort upon tort, a 
violation of the legal maxim " that no man (nor Govern- 
ment) shall take advantage of its own wrong, with repu- 
diation of an existing debt superadded. 

Furthermore, it is not competent for Congress to legis- 
late for a court, in entering up the amount of a verdict 
or finding of damage, for the purpose of avoiding the 
payment of the just compensation, or actual damage. It 
may direct as to a judgment of recovery, to be paid forth- 
with from the Treasury, under its control of the appropri- 
ation of money ; but it cannot do it to avoid the debt. Nei- 
ther can Congress set up an alleged agreement nor am- 
biguity of its own words, to avoid the full damage ascer- 
tained in pursuance of and direct response to an issue in 
the reference. There is no consideration or mutuality to 
make it an agreement. It was a proposal of Hubbell not 
accepted as proposed, and as to only two of the patents, 
the shell and fuze, and both amount and time of payment 
were of its essence. Wliat consideration was Hubbell to 
have for the expense and carriage of his law suit to fix his 
damage ? Was he to be paid |100,000, if he established 
the originality and |10,000 damages or |50,000 damages, 
or was the United States to have the privilege of destroy- 
ing his patents, if it could, and of not paying for them if 
it could not ? 

"Was the suit one always winning on the side of the 
United States, like the boy with the tossing penny, heads 
the United States wins, and tails Hubbell loses ? 

If, according to the supposed version of the court, to test 
its unsoundness on the theory of an agreement, Hubbell 
proved one fuze patent alone valid, and his damage 
$500,000, he was to have only $33,333.33J, and if he 
sustained two patents as valid, and his damage on both 
$200,000 he was to have ^m^mMi. And if he sustamed 
three patents and damages to only $100,000, then he was 
to have $100,000. Where is the just and equitable con- 



8 

side ration of any alleged agreement ; that the more dam- 
ages he proved in direct response to the second issue of 
the reference, the less damages or pay he was to receive ? 
If any such agreement as that had been made, which 
however was not, it would not be valid, and it cannot be 
raised b}^ implication. The considerations of mutuality 
to constitute an agreement were not there, to override the 
general verdict of damages in Hubbell's favor. The court 
does not say that there was any such agreement ; but says 
that Congress limited the appropriation from the court 
fund, to 1100,000 for three patents, and therefore it allows 
two-thirds or $66fi66Mi out of this fund for the two 
patents. And that Hubbell signing the petition to bring 
up the reference or resolution which he was compelled to 
do by Congress and the rules of court, is a presumption, 
that he agreed to abide by the '' damages " — " damages^^ 
is the word, and these " damages " are the §200,000, the 
balance of which he now claims an execution or appro- 
priation for from Congress. Hubbell's petition pleads 
$882,500 royalty or damages, and calls for accounts in the 
usual form in equity practice. 

The putting of the second question by Congress, to de" 
termine the just and equitable compensation or damage, 
created an obligatioit upon Congress to pay such damage 
when ascertained ; and any limited cotemporaneous pay- 
ment must be only on account of the sum total of the dam- 
age. 

The ministering Angels of Justice, have been hovering 
over this case, to see that the scales are true, and the sword 
sharp, in this conflict between the United States and the 
inventor of her war powers so potent in giving freedom to 
millions ; for the alleged compensation agreed upon for 
the shell and fuze patents $100,000, is precisely the one- 
half of the whole sum, and this one-half or $100,000, is 
fairly allotable to that branch of the case, and the other 
half or $100,000 is allotable to the percussion patent. 



9 

If there was any valid agreement, then Congress obli- 
gated itself to pay Hubbell $100,000 for his shell and fuze 
patents or either of them, if both or either proved valid, 
and the use amounting to $100,000 damage to him. The 
fuze proved valid and alloting one-half of the whole dam- 
age of $200,000 to it, he has proved the $100,000, and re- 
ceived only %mfimMi, There is yet $33,333.33J due to 
Hubbell on this patent, under the alleged agreement to 
pay, and to receive $100,000. 

Further, Congress by including and referring the per- 
cussion patent, to determine the compensation or damage 
under it, thereby obligated itself to pay this damage, when 
judicially found as reasonable, on the proofs as at common 
law. This has been found also at $100,000, the other half 
in the allotment of the $200,000, and not a penny of it 
paid. 

The two deficiencies $33,333.33J and $100,000, make up 
the sum of $133,333. 33J decree rendered January 24, 1870, 
which under the general law as to judicial judgments 
against the United States, bears 5 per cent, interest per 
annum, amounting to $20,000 more for the three years, 
being the whole sum of $153, 333. 33 J now claimed, as 
proved and established reasonable damage or compensa- 
tion unpaid. 

■ Submitted respectfully, 

WM. WHEELER HUBBELL. 
To THE Committees on Naval Affairs or Congress. 

Washington, January 27, 1873. 



10 

Washington, January 23, 1873. 
Hon. Glenni W. Scofield, 

Chairman of the Com.mittee on Naval Affairs. 

I wish to say to yourself and your committee that while 
I am bound for the benefit of my creditors and to pay my 
debts, to accept whatever money Congress tenders to me, at 
any time in my claim, yet I never can voluntarily consent 
to the repudiation of any part of a judicially ascertained 
debt of the United States. 

If the United States can by duress in withholding 
money, and legislation for a court, avoid a just debt, or an 
adjudicated obligation or debt, such as it owes me, then 
any political party which chooses at any time to exercise 
such a precedent or power, can repudiate a great part of 
the face value of the bonded debt of the United States, 
notwithstanding the Constitution, on alleged differences 
between notes and gold at the time of its issue, or any 
other alleged ground. 

I am an adjudicated creditor of the United States on 
grants under its seal. . The ascertained debt was $200,000 
on the proofs at common law and in fact. The unpaid 
balance is $183,333. 33 J and with the usual legal interest 
of five per cent., being the same interest that was paid on 
the first instalment of the debt, this alone is $20,000, mak- 
ing the $153,333, for which I drafted a bill in the form of 
the former committee bill. In it are included three ad- 
ditional valuable patents not yet in use, and of course I 
could make no claim on them. They are for a concussion 
fuze, incendiary shell, and rifle shell, and I am willing to 
make the concession of transferring them to complete the 
Naval shell system for future use, without additional com- 
pensation. I claim the established debt and ask the con- 
cession of allowance of the interest on this balance, for 
the same reason it was paid on the first portion, that is, it 
is an adjudicated indebtedness of the United States in my 
favor. 

Respectfully, 

WM. WHEELER IIUBBELL. 



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